Wednesday, July 23, 2014

Laws and Flaws

In the Supreme Court’s ruling in the Hobby Lobby case, Justice Ginsberg, in her dissenting opinion, made the point that ‘closely-held’ corporations could now use their deeply and sincerely held religious views to circumvent long-standing anti-discrimination laws.

Since it really isn’t all that hard to justify just about anything based on someone’s religious views, she correctly noted that the court has “walked into a minefield” in this ruling.

Given the ideological activism of the Robert’s court, it most certainly will not be the last. Yet, this wasn't the first time that religion was used to provide exemptions from the law.

On August 17, 1789, the 1st Congress held discussion and debate on the proposed first ten amendments, what became the Bill of Rights. Like other passages of the Constitution and its amendments, every word in it was scrutinized and examined with granularity.

The 2nd amendment was no exception. One proposal was to include an exemption for religious purposes, to relieve some from the duty of bearing arms:
“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms[1].” (emphasis added)
Worth mentioning is whether or not to allow for religious exemptions suggests that members of the 1st Congress were considering making serving in the militia mandatory. If it wasn’t mandatory, then an exemption for whatever reason would be unnecessary.

And, if it were to be mandatory, then, of course, it would also be organized, i.e. ‘well regulated’. That in turn, would put to rest the idea of the lone patriot, armed to the teeth, bravely defending liberty against the ravages of an oppressive and tyrannical government bent on denying personal freedom.

In fact, in another earlier version of the amendment held this passage:
“A well regulated militia, composed of the body of the people…”
the second clause was removed because it was thought to be redundant and therefore unnecessary. Had the clause as written above survived the debate, there would be no confusion whatever regarding whether the authors were talking about the people’s collective right versus a person’s individual right.

Akhil Reed Amar, writing in The New Republic[2], suggests that if the amendment were written in the modern language it would read:
“An armed and militarily trained citizenry being conductive to freedom, the right of the electorate to organize itself militarily shall not be infringed.”
Amar refers to this as a ‘communitarian’ reading, as distinguished from either a statist (read: gun control) or a libertarian (read: gun rights) reading. The preamble reads “We the People” for good reasons: to establish this new government for the collective benefit of its citizenry. The militia, then, was to be summoned by the government, yet stand outside of government.

Amar continues with a comparison of juries. Like the militia, it is summoned by the government and is comprised only of qualified citizens. Twelve people coming together of their own volition and declaring another guilty is illegitimate under the Constitution. It must be done under the auspices of the government. So too, a militia is only legitimate when comprised of qualified citizens operating under the aegis of the government.

During the debate to include the religious exemption, Elbridge Gerry asked “What sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia…” (emphasis added).

Thanks to 60 years of special-interest groups’ manipulation of public opinion, there’s been much debate about the 2nd amendment and what it means, or more importantly, what the Founding Fathers meant it to mean. Oftentimes this debate comes down to whether the 2nd amendment’s intention was to guarantee an individual’s right to bear arms, as opposed to a militia’s right.

There is a plethora of documentation describing what the Founding Fathers meant by the 2nd amendment, perhaps none better than the 2nd Militia Act of 1792, written, debated, and voted on by the same men who wrote the Constitution and the Bill of Rights. This act defined just how well regulated the militia was to be.

Many of the founding fathers were lawyers, men who knew the importance of words and their meanings. So when they included the term ‘A well regulated militia’, they were being intentionally specific. If the authors of the 2nd amendment meant for it to be an individual right, they would not have included the term ‘militia’ at all.

In the Cato Institute Handbook for Policy Makers (2009), David Hardy states that the “right to bear arms” is an ancient right[3]. In fact, it wasn’t so much a ‘right’ as it was an obligation. That obligation was to be prepared (armed) to protect the King from insurrection.

What is omitted in the text submitted to the Congress by Hardy is the concomitant and superior aspect of the requirement of the populace in those ancient times to carry the burden of the cost and maintenance of said arms, all for the benefit of the King.

What else is omitted in the report is the real ancient regulations that went along with the imagined right. In 1548, a law of Edward VI required people who "shoot guns" to register with their local justice.[4] This, along with size requirements of longbows (the original ‘arms’ of militias) was the origin of the well-regulated militia. Many of these 'regulations' have survived and are incorporated into the 2nd Militia Act of 1792.

The now widely-discussed idea of ‘militia vs. individual’ can be terminated easily. What did the authors of the 2nd amendment really think a militia was?

States exercised militia drafts in the late 1770’s to maintain the Continental Army[5]. The ‘well regulated’ aspect came into play after the Revolutionary War, during which Washington would regularly report back to John Adams (and others) the difficulty he was having in conducting the war, in part to what some British Loyalists referred to as the “rabble in arms’ that didn’t deserve to be called an ‘army’[6]. Washington’s army was not well-regulated and that made conducting the war considerably more difficult.

So when time came to amend the Constitution, this concern was at the forefront of the author’s minds. They wanted to secure the newly established country from attack, particularly from the British, who they suspected of attempting to retake the colonies.

In rejecting the religious exemption clause of the draft amendment, Gerry said:
“…this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms[7].”
Gerry was concerned about the creation of a militia comprising members of some particular religion, or excluding one or another religion from participation altogether, of twisting the purpose of the militia for political purposes.

In removing the threat that the 2nd amendment could one day be construed to favor one religion over another, members of the 1st Congress made the 2nd amendment stronger, if not more ambiguous. In the Hobby Lobby ruling, the Robert’s court, in an act of ideological judicial activism, has now made the 1st amendment equally as ambiguous, and weaker, as Elbridge Gerry once feared would happen to the 2nd amendment.

[1] Robert P. Williams, “The First Congress March 4, 1789 – March 3, 1791: A Compilation of Significant Debates”. Exposition Press Inc. Jericho NY 1970.
[2] Akhil Reed Amar, “Second Thoughts”, The New Republic, July 12, 1999.
[3] “Historical Bases of the Right to Bear Arms”, Report of the Subcommittee on the Constitution of the Committee on the Judiciary, U.S. Senate, 97th Congress, 2nd session (“Other Views”).
[4] “To Hold and Bear Arms: The English Perspective”. Lois G. Schwoerer, Chicago-Kent Law Review Volume 76, Issue 1.
[5]The Evolution of Military Conscription in the United States” Timothy J. Perri, The Independent Review, Volume 17, Number 3, Winter 2013
[6] David Mcullough “1776”, Simon & Schuster, 2006
[7] Ibid.